McDonald v Australian Building and Construction Commissioner

The appeal in McDonald v Australian Building and Construction Commissioner was heard and determined by the Full Bench of the Federal Court of Australia. The appellants, Mr McDonald and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), were appealing against the pecuniary penalties imposed by the primary judge for contraventions of section 38 of the Building and Construction Industry Improvement Act 2005 (Cth). The penalties were imposed for serious breaches of the Building and Construction Industry (Industrial Action) Act 2004 (Cth) during a union-led campaign against a company.

The primary legal issues before the Full Bench were whether the primary judge had failed to take proper account of the motives and the seriousness of the contravening conduct, whether the penalties were calculated as a percentage of the maximum and whether the penalties adequately reflected the circumstances of the contravention. Further, it was contested whether the primary judge had failed to consider the relative degrees of responsibility of the appellants and whether the judge erred in not suspending the penalty due to the seriousness of the conduct. Lastly, it was argued whether the penalties were manifestly excessive.

The Full Bench held that the penalties imposed by the primary judge were neither unreasonable nor plainly unjust. The penalties were within the range available and reflected the primary judge’s assessment of the objective seriousness of the conduct and the subjective circumstances of Mr McDonald and the CFMEU. The court found that the primary judge had appropriately considered the motives and seriousness of the conduct, and the penalties were not merely a percentage of the maximum but were tailored to the specific circumstances of the contravention. The Full Bench also held that the primary judge had appropriately considered the relative degrees of responsibility and did not err in not suspending the penalty, as the seriousness of the conduct did not warrant such a measure. The Full Bench concluded that the penalties, when considered in their entirety, were not manifestly excessive.

In conclusion, the appeal was dismissed with costs. The Full Bench ordered that the appeal be dismissed and that the appellants pay the respondent’s costs of the appeal, as agreed or taxed.